Flaw (557, 558, 862, 559,-666)
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Keywords: Flaw
Total judgments found: 248
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Judgment 1713
84th Session, 1998
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"In choosing figures of local pay for the purpose of applying Flemming there can be no single hard-and-fast approach. As was held in Judgment 1265, the [ICSC] must be allowed some discretion over method, even though the Tribunal will still review the exercise of it. The decision impugned may not stand if, say, it overlooks or misconstrues some particular factor, or if some method is applied for the wilful contrivance of lower figures of local pay, or if corners are cut for the sake of saving time, but to the detriment of staff interests."
Reference(s)
ILOAT Judgment(s): 1265
Keywords:
abuse of power; discretion; disregard of essential fact; flaw; flemming principle; icsc decision; judicial review; mistake of fact; mistaken conclusion; misuse of authority; salary;
Judgment 1700
84th Session, 1998
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 27
Extract:
Discretion to determine whether there are exceptional circumstances to warrant waver of the time limits for internal appeal is vested in the Joint Appeals Board. "It is the Board's decision which is relevant, and the question does not arise of substituting the Tribunal's opinion for the Board's. Only if there is some fatal flaw in the Board's decision may the Tribunal intervene."
Keywords:
decision; exception; flaw; internal appeal; internal appeals body; judicial review; limits; report; time limit;
Judgment 1634
83rd Session, 1997
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 17
Extract:
"If the Director-General had really intended to employ the complainant as a supernumerary he ought to have given him a contract which complied with the Staff Rules and Regulations. He did not. The contract was therefore not one for supernumerary employment even though that was the label it bore."
Keywords:
contract; flaw; intention of parties; offer; organisation's duties; staff regulations and rules;
Judgment 1595
82nd Session, 1997
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
"Though the qualifications stated in a notice of vacancy are not absolutely binding and the Director General may still exercise some discretion, he may not so utterly discard them as to flout the rules that ensure the proper openness and objectivity of the competition."
Keywords:
appointment; competition; criteria; discretion; executive head; flaw; limits; vacancy notice;
Judgment 1565
82nd Session, 1997
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"The complainant argues that since it was unlawful to have no staff representative on the Selection Committee its recommendation too was unlawful. [...] But since the provisions on the membership of the Committee are not binding, and if no staff representative chooses to attend, that cannot have the effect of invalidating its recommendations."
Keywords:
advisory body; composition of the internal appeals body; flaw; promotion; promotion board; recommendation; staff representative;
Judgment 1549
81st Session, 1996
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"Whether [the complainant who is now retired] still has any interest in the quashing of someone else's appointment is moot; but he still has an interest in exposing a breach of due process which may warrant an award of damages: see Judgment 729 [...]."
Reference(s)
ILOAT Judgment(s): 729
Keywords:
appointment; candidate; cause of action; claim moot; compensation; competition; due process; flaw; internal candidate; post; procedural flaw; receivability of the complaint; retirement;
Judgment 1548
81st Session, 1996
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 21
Extract:
The grounds for non-renewal being deterioration from 1990 in the complainant's performance and conduct, "the burden is on the Organization to show that its decision rested upon proper appraisal of the complainant's performance. [...] All the reports up to September 1990 having been satisfactory, the Organization's failure to have proper appraisal reports made since then is a flaw in the decision."
Keywords:
breach; burden of proof; conduct; contract; decision; different appraisals; flaw; non-renewal of contract; organisation's duties; performance report; period; procedural flaw; rating; unsatisfactory service; work appraisal;
Judgment 1547
81st Session, 1996
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 12-14
Extract:
"The EPO had no formal agreement with the union about facilities such as the distribution of a summons to a meeting. But it admitted to the Appeals Committee that its consistent practice since 1992 had been to distribute any unsealed unofficial internal mail, whether private or not, save any text containing a personal attack on someone. Was such usage binding in law? [...] The plain expectation of the staff was that the EPO would deliver notices from their union without let or hindrance." Therefore the complaints succeed.
Keywords:
binding character; discretion; facilities; flaw; freedom of association; freedom of speech; judicial review; limits; organisation's duties; practice; staff union; staff union activity;
Consideration 8
Extract:
"Precedent has it that an organisation has some latitude in affording facilities to a staff union and its decisions are not subject to judicial review. That is not so, however, where it is charged with breach of freedom of association. The Tribunal will indeed interfere if the effect of the impugned decision is to hamper the freedom of speech that any union must enjoy. Refusal to deliver invitations to a union meeting is unquestionably a breach of the privacy of mail and of the freedom of speech that is part and parcel of freedom of association."
Keywords:
case law; discretion; facilities; flaw; freedom of association; freedom of speech; judicial review; limits; staff union; staff union activity;
Judgment 1527
81st Session, 1996
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The complainant is challenging the lawfulness of the appointment of another official, who was promoted without a competition to a post for which the complainant considered himself qualified. The Tribunal holds that the post should "have been properly advertised and a selection made by competition." Even though the other official "had been performing the duties for about a year on her own G.7 post of administrative assistant, she could have been appointed to the vacant post only after the prescribed procedure had been followed. the itu was not free to bypass the procedure by promoting her to P.3."
Keywords:
appointment; competition; flaw; procedural flaw; promotion; vacancy; vacancy notice;
Judgment 1525
81st Session, 1996
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
The Director-General took a premature decision not to renew the complainant's appointment. The Tribunal holds that "for want of a valid decision to terminate his appointment, the contract between the complainant and the organization is still in force and he is entitled to payment of salary and allowances as from the purported date of termination. UNESCO must also decide whether to reinstate him. In view of his seniority his appointment would not have been bound to end if due process had been observed. In deciding whether or not to renew his contract the organization must comply with any procedural and substantive rules that are material."
Keywords:
advisory body; advisory opinion; consequence; contract; extension of contract; flaw; non-renewal of contract; procedural flaw; reinstatement;
Judgment 1518
81st Session, 1996
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 11-12
Extract:
The President's decision on the complainant's internal appeal was made on the strength of internal correspondence that the complainant had never seen and that the Appeals Committee had never considered. "That constituted a gross breach of due process." Because of the breach of Article 113(1) of the Staff Regulations on the procedure before the Appeals Committee the President's decision must be set aside.
Reference(s)
Organization rules reference: ARTICLE 113(1) OF EPO'S SERVICE REGULATIONS
Keywords:
breach; case sent back to organisation; consequence; decision; decision quashed; flaw; internal appeal; internal appeals body; procedural flaw; procedure before the tribunal; right to reply; staff regulations and rules;
Judgment 1477
80th Session, 1996
International Training Centre of the International Labour Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
"As to the complainant's claim to token damages for moral injury this judgment affords a remedy for any such injury."
Reference(s)
ILOAT Judgment(s): 1359
Keywords:
compensation; competition; competition cancelled; flaw; judgment of the tribunal; moral injury; procedural flaw;
Consideration 10
Extract:
"When [a selection] process proves flawed the Tribunal will quash any decisions it engendered and order resumption with due heed to the rules, albeit on the understanding that the organisation must shield the successful candidate from any injury that else may flow from the quashing of an appointment accepted in good faith."
Reference(s)
ILOAT Judgment(s): 1359
Keywords:
appointment; competition; competition cancelled; flaw; injury; procedural flaw; staff member's interest;
Consideration 10
Extract:
"As the Tribunal held in Judgment 1359 [...], an organisation must be careful to abide by the rules on selection and appointment. When the process proves flawed the Tribunal will quash any decisions it engendered and order resumption with due heed to the rules".
Reference(s)
ILOAT Judgment(s): 1359
Keywords:
appointment; case law; competition; competition cancelled; consequence; due process; flaw; procedural flaw; subsidiary;
Consideration 7
Extract:
"It is plain from the whole process of selection that though the Committee did endorse the panel's report it had neither looked at the individual applications nor seen any of the candidates but had left all that to the panel. Though it is not unthinkable for a selection committee to set up a panel of people whom it believes to be better fitted to assess the technical qualifications of candidates, especially external ones, it may not delegate altogether its authority under the Staff Regulations. It must exercise its own authority and not delegate unless the rules say it may."
Keywords:
advisory body; competition; condition; delegated authority; flaw; impartiality; procedural flaw; selection board; staff regulations and rules;
Consideration 9
Extract:
"By letting [a special selection] panel draw up a short list and endorsing its conclusions without even seeing the candidates on that list or looking at their records the [Selection] Committee failed to observe its terms of reference under the Staff Regulations. [...] The process of selection was therefore unlawful".
Keywords:
competition; competition cancelled; due process; flaw; procedural flaw; selection board; staff regulations and rules;
Judgment 1471
80th Session, 1996
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"The Tribunal holds that the process of appeal has [...] been set at nought because neither board of appeal had at its disposal the information necessary for consideration of the case. The proper procedure is to return the case to the Regional Board so that it may resume proceedings with the Selection Committee's full records at its disposal."
Keywords:
flaw; internal appeal; internal appeals body; procedural flaw;
Judgment 1434
79th Session, 1995
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
The organization denied the Appeals Board access to information and documents that were given to the Selection Board. The Tribunal holds that the complainant "was denied due process in the internal appeal proceedings, and for that he was entitled to redress. the organization did not offer him any. The Tribunal will therefore award him 3,000 United States dollars in moral damages".
Keywords:
compensation; confidential evidence; flaw; internal appeal; internal appeals body; moral injury; procedural flaw; selection board;
Judgment 1412
78th Session, 1995
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The complainant alleges that the procedure that led to his assignment on a career path was flawed inasmuch as the official who sign the decision, the Director-General, was also at the material time leader of the division that the complainant was working in. "It may be a pity that at two decisive stages in the procedure one and the same person was called upon to choose the complainant's career path; but the coincidence was due to a duplication of function which in itself was not wrong. Only if the Director-General's decision proved not to be impartial and objective would it be set aside."
Keywords:
assignment; bias; career; flaw; judicial review; procedure before the tribunal;
Judgment 1399
78th Session, 1995
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
"CERN's refusal to produce minutes of meetings of the Joint Advisory Appeals Board in no way impaired [the complainant's] interests insofar as the hearings were recorded on tape to which [the organization] has expressly allowed him access from the outset. [...] Even though such practice is not in line with Regulation R VI 1.09 the omission is not in the circumstances a serious one."
Reference(s)
Organization rules reference: CERN REGULATION R VI 1.09
Keywords:
cause of action; consequence; flaw; internal appeal; internal appeals body; practice; procedure before the tribunal; staff regulations and rules;
Judgment 1398
78th Session, 1995
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
If the complainant succeeded in proving flaws in the procedure adopted by the Appeals Committee "they would indeed have been fatal and the EPO would, contrary to what it says, be liable."
Keywords:
effect; flaw; internal appeals body; liability; organisation; organisation's duties; procedural flaw;
Judgment 1395
78th Session, 1995
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The complainant was dismissed under Staff Rule 2.6.01 which says that "appointments shall terminate on account of [...] g) dismissal for specified reasons of unsuitability." The Tribunal holds that this means, "first that the reasons must be 'specified' in some form that enables the staff member to understand them clearly and, secondly, that the statement of them must be prior to the actual dismissal. It is, after all, a general principle of law that the staff member must be afforded a proper opportunity, again prior to dismissal, to answer any allegations of unsuitability."
Reference(s)
Organization rules reference: EMBL'S STAFF RULE 2.6.01
Keywords:
due process; duty to substantiate decision; flaw; general principle; organisation's duties; reinstatement; right to reply; staff regulations and rules; termination of employment; unsatisfactory service;
Judgment 1386
78th Session, 1995
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 27
Extract:
The complainant was wrongfully dismissed following probation. The Tribunal holds that "in material damages the EPO shall pay him an amount equivalent to the emoluments he would have earned from the date of dismissal until the end of the month in which the Tribunal delivers the present judgment. Since he has convincingly shown that he has not been employed since the EPO dismissed him, the organisation may not subtract from that amount any indemnities or other earnings he may have received during that period."
Keywords:
compensation; flaw; material damages; material injury; probationary period; reckoning; termination of employment;
Judgment 1384
78th Session, 1995
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
The complainant was accused of removing computer equipment from the work place. For that reason the organization did not renew his fixed-term contract. "There were many flaws in the procedure that the organization followed. It did not allow the complainant to be present when statements were taken from the witnesses or to question them. [...] Not only was he denied access to their statements but even their identity was concealed from him. [...] No verbatim record of the statements by the witnesses was ever produced." He never got to see the results of the investigation carried out into the matter and he was not given an opportunity to put forward any arguments in his favour. "The conclusion is that he was denied his right to defend himself before an adverse decision was taken [...]. The complainant's right of defence was seriously prejudiced."
Keywords:
conduct; contract; due process; fixed-term; flaw; inquiry; investigation; misconduct; non-renewal of contract; procedural flaw; right to reply;
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